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Thomas
Thomas, Lawyer
Category: Immigration Law
Satisfied Customers: 7618
Experience:  UK Lawyer holding practising certficate for England & Wales.
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british national's fiancée not a british national gives birth

Customer Question

british national's fiancée not a british national gives birth to a son in the uk is she entilted to temporary residence in the uk
Submitted: 2 years ago.
Category: Immigration Law
Expert:  Thomas replied 2 years ago.
Hi,
Thanks for your question.
Is she still in the UK?
What nationality is she?
What is her immigration status in the UK? ie. what visa does she have?
Kind regards,
Tom
Customer: replied 2 years ago.

yes she is still in the UK

She is Nigerian

She was refused stay as an extended family member but was informed that when her son was born she should submit the childs birth certifivate and proof of her partners status(hes a british naional with british passport)

Thanks you Tom

Expert:  Thomas replied 2 years ago.
Hi
Thanks for your reply.
Is she in a relationship with the father of the child as a loving couple?
I note that you say she was refused a extended family member visa, but what visa did she have before this? How did she get entry to the UK?
Kind regards,
Tom
Customer: replied 2 years ago.

yes she is in a very very loving relationship with the father for a number of years and she initially came to the UK on a student visa

Expert:  Thomas replied 2 years ago.
Hi,
Thanks.
How long has she cohabited (ie. lived together in the same property) with her partner?
Does the father earn in excess of £18600 per annum from salaried employment?
Kind regards
Tom
Customer: replied 2 years ago.

they have lived together for over 2yrs and the father of the child is a supermarket manager of Tesco and earns well over £18600!!

Expert:  Thomas replied 2 years ago.
Hi,
Thanks. Drafting your answer now. 5 mins please.
Tom
Expert:  Thomas replied 2 years ago.
Hi
Thank you for your question and patience, I’m Tom and I’ll try to help you.
If she does not have current leave to remain then she does not have any automatic right to temporary leave to remain simply because she has given birth to a UK citizen child.
Basically though, if she is in a relationship with a UK citizen, who she has lived with for over two years and has a young child with the UK citizen then it’s much more difficult for the home office to deport her.
Provided he earns more than the amount I asked about and has done for more than 6 months and she can prove that they have lived together for over 2 years then she would ultimately be able to apply for a unmarried partners visa. This is effectively the same as a spouse visa for people who are in a relationship together but who are unmarried. It gives them the same immigration visa status as a married couple.
However, the problem is that she does not have leave to remain, which means that the home office has a general ground to refuse her visa if she applied for it in county. They would refuse the visa and force you to appeal to an immigration appeal tribunal. You would argue that it would be unreasonable and disproportion to expect her and the child to have to return to her home country to make the application for a spouse visa which would be accepted.
This means that it is absolutely essential that she instructs a UK solicitor practising immigration law to act on her behalf either with a view ot submitting the application in the UK or arranging for the application to be prepared so that she can submit it from her home country.
My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.
Kind regards,
Tom
Thomas and 2 other Immigration Law Specialists are ready to help you
Customer: replied 2 years ago.
Does that mean she can't get any form of residence as she wishes to marry her partner
Expert:  Thomas replied 2 years ago.
Hi,
If she were prepared to return to her home country to make the application then provided you instruct a solicitor then she would get an unmarried partner visa.
If she applied in country then it means that it's difficult, not impossible. To have a chance she must instruct a solicitor and be prepared to appeal and pay the legal fees on appeal.
Tom
Customer: replied 2 years ago.

Thank you Tom so in effect she cannot get any kind of temporary residence in the UK for the purposes of getting married to her British

Partner?

Expert:  Thomas replied 2 years ago.
Hi,
Correct. However, she does not need leave to remain to physically marry her partner. Provided she can prove her identity and address then a local registry office should still marry her
Tom
Customer: replied 2 years ago.

Thanks Tom in terms of her Identity address would that be sufficient for a church wedding? and not stating the obvious what form of id would suffice for both identity and address? they have lived together for at least 2yrs and the minister of the church knows them very well as regular worshippers it is certainly not a "sham" marriage we hear of so much about these days!!

Expert:  Thomas replied 2 years ago.
Hi,
The documents are outlined on the folloiwng page:
https://www.gov.uk/marriages-civil-partnerships/documents-to-take-to-the-register-office
Tom
Customer: replied 2 years ago.

Thanks Tom Just for the sake of clarity and I wont disturb you any longer ! could she get married in a Church with the same documents required for the registry office??

Expert:  Thomas replied 2 years ago.
Yes, they should only require her to comply with the requirements that I linked to.
Tom
Customer: replied 2 years ago.

Thank you Tom I wish you a good day I hope to be in touch with you again very soon!

Joseph

Expert:  Thomas replied 2 years ago.
No problem. Good luck.
Tom
Customer: replied 2 years ago.

hello Tom sorry to be a nuisance but can you assist with this point?

does this lady need any residence visa or temporary residence permit (if such a thing exists) to marry in this country because the minister mentioned to them both the fiancée should have some sort of residency permit? and once married can the wife apply for a spouse visa?

Expert:  Thomas replied 2 years ago.
No they do not need any leave to remain because this has been ruled contrary to a person's human rights, but some religious ministers will not be as informed as a registry office.
Tom
Customer: replied 2 years ago.

Good afternoon Tom

Please can you just confirm if a wedding ceremony were to take place can the wife then apply for a spouse visa? and on a separate note if both parties were not British citizens and the women gave birth to a son would the same rules apply to them in terms of marriage conditions and is there some sort of authority that we can show the minister that the fiancee does not need leave to remain just to get married

Many Thanks

Joseph

Expert:  Thomas replied 2 years ago.
Hi Joseph,
I've already explained above about whether shed can apply for a spouse visa.
If they were foreign nationals then the same rules would apply if one of them had indefinite leave to remain.
You used to have to prove immigration status by applying for a certificate of approval from the home office but this has been abolished a really long time ago:-https://www.google.co.uk/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=certificate%20of%20approval%20for%20marriage
Tom
Customer: replied 2 years ago.

Thank you Tom I will not bother you again! you have been immensely helpful thank you

Joseph

Expert:  Thomas replied 2 years ago.
No problem
Customer: replied 2 years ago.

good morning Thomas hope I am not disturbing you again? anyway the couple went to register intent to marry the registra was helpful and suggested they get in touch with the home office for an id card to confirm the lady's nationality ?? is this possible? are the Home Office obliged to do this even though the lady is in "limbo land" as regards ***** ***** in the UK and wont they issue deportation orders instead of issuing an id card when they discover her intention to marry?

Expert:  Thomas replied 2 years ago.
I will only be able to answer in a couple of hours I'm afraid.
Tom
Customer: replied 2 years ago.

thats fine Tom

Expert:  Thomas replied 2 years ago.
Thanks.
Expert:  Thomas replied 2 years ago.
Hi,
An ID card is a document proving a person's identity issued by the country of which they are a citizen.
The home office could not issue an ID card for someone who is another nationality. If they wished to obtain an ID card then the would have to contact their own country's embassy if the country in question did actually issue ID cards.
Kind regards
Tom
Customer: replied 2 years ago.

the registra suggested the home office could issue some sort of document confirming her identity or copy the inside of the lady's passport which they have retained! could they issue a deportation notice once they get wind of the intended marriage?

Expert:  Thomas replied 2 years ago.
Hi,
Right, well, I'm not sure about that. You will have to ask the registrar again if she does not have any other documents she can use for ID to get married.
They could issue a deportation proceedings at any time frankly but if they are aware she has a child then it makes it less likely.
I have answered your original question now. If you require any further assistance please kindly submit a further question to the board
Tom
Customer: replied 2 years ago.

Ok Thank you

Expert:  Thomas replied 2 years ago.
You're welcome
Tom